Fair use is a concept in copyright law that is about balancing the rights of the copyright holder with discussion (and exploration of) copyrighted works.
Fair use is what allows us to write book reviews or movie reviews, quote a short bit of a text in an essay, or reference a copyrighted work as part of a lawsuit or other thing requiring documentation.
It’s also what allows (at least some space) for parody songs, filk, fanfiction, fanvids, fan drawings, mashup images, cosplay, and much more.
- Part 1: Why is copyright so complicated?
- Part 2 : Key concepts and terms
- Part 3 : What is under copyright? And what isn’t?
- Part 4: Fair use: what it is and isn’t. (this post)
- Part 5: Examples and common confusions
- Part 6: Common Pagan situations, including some best practices.
- Part 7: What creators of material should know.
Fair use is a weird thing. It isn’t set out in detail in law – instead, it is a possible defense if someone sues you for copyright infringement. A court or judge has to decide if your specific case is fair use or not. Unless and until that happens, you don’t know for sure.
This makes it very hard to make suggestions, though there are some educational guidelines (more on that in a minute) and a lot of sites have set limits on what they consider okay for the uses they see.
Courts look at four factors when making their rulings about fair use, but different courts have made very different decisions about similar amounts of material, or how material was used.
This is good place for a reminder that getting permission from the copyright holder is often a great way to avoid this whole question. (Either by getting direct permission, or by using materials that have been licensed for general use through blanket permissions: see the section on Creative Commons below.)
The four factors courts look at are:
- How transformative the use is
- The nature of the copyrighted work
- The amount and substance used
- The effect of use on the potential market
People have written books about all of these, so I’m touching on it briefly here, and if you want to dig into it further, the Stanford site mentioned below is a great starting place for a lot more detail aimed at non-lawyers.
Have you used the copyrighted work to do something new and interesting? That might favour a transformative use.
Some things courts look for are if you’ve added new meaning by using the work and adding additional material or context. Maybe you’ve used it to make connections between different things.
Fanvids are a great example here: sometimes the song someone chooses and the video clips someone chooses bring out new connections in the existing material, or highlight something that might be lost otherwise.
(Need an example? Parachute by Thingswithwings is a Leverage fanvid that highlights the relationship between three of the show’s characters. And this discussion of the making of a vid for We Didn’t Start The Fire (the Billy Joel) illustrating 50 years of (Western media) fandom by Scribe and Fiercynn talks about some of the creative choices that go into this kind of transformative work, and could not exist without the source material.)
Nature of the work
In general, fiction and poetry (or creative work in general) gets more protection than non-fiction.
This is because sharing of information or information is seen as a key good thing in society, and so there’s encouragement in the law to do it within reason.
(However, sharing the information doesn’t necessarily mean sharing exactly how someone else said it: often it is better from a copyright point of view to give your own paraphrase and tell people where to find the original rather than copy an extended passage.
Copying directly is usually best saved for when you need to discuss specific wording, or are doing a detailed review or analysis where you look at a segment, then discuss it in detail, and then do another section.)
Unpublished works also generally get more protection than published ones. (Because the creator has the right to control how the work is shared in the first place.)
Amount and substance
Basically, the more you use, the more likely it’s going to be considered a copyright violation. Copying the entire thing, usually a problem.
This is why a lot of spaces set a limit like saying you can quote a certain number of sentences or words: it helps give some guidance about what ‘too much’ might be.
It’s not just about the number of pages or words or percent of an image or song, though – it’s also about how core that piece is to the work you’re copying. This is something it’s very hard to evaluate, but it’s a factor the courts consider.
However, parody is a little different here: if the whole work you produce is a parody, you probably have more license in copying memorable bits from the thing you’re using. The relationship to the original work is a large part of what makes the parody recognisable and effective.
Effect on the potential market
A lot of people try to say that their use won’t affect the market. That isn’t something that the user of copyrighted material gets to determine, though. You don’t know all the parts of the potential market like the original creator or copyright holder does.
Basically, though, if you affect the copyright holder’s ability to make money from their work (by providing copies for free, by using their work to create an effective alternative that people buy instead of the original) then you may find yourself having problems with copyright.
Providing citations and acknowledgement
A lot of people think that if you say where the original was from, that will keep you out of trouble.
This is where we come back to the difference between copyright and plagiarism I talked about in part 1. Telling people about the original is a good thing! But it’s not enough to stop a copyright violation if there is one.
Getting permission from the copyright holder, or using material which the copyright holder has agreed to share is a different situation. In that case, credit may still be required as part of the permission or license.
Creative Commons licensing is a method creators can use to give blanket permission for some kinds of uses, and some of the licenses require crediting the original in a specific way.
There are some very general guidelines for educational uses, which means things that look like a structured class This is usually material that is available to a limited number of people (not posted for the entire Internet to access), for the duration of a series of classes (not forever).
Ongoing Pagan classes like seeker, dedicant, or pre-initiate classes can fit into this category, but posting something in public spaces online or using it for a one-time workshop probably would not qualify.
The Stanford site in the resources has an entire section on academic and educational uses that may be of interest.
Stanford has an excellent and widely referenced site on Fair Use. (However, don’t trust anything you see in the comments without checking it in well-informed and reliable source: a lot of the comments there are just wrong.)
In particular, you might find the summaries of major fair use cases interesting, and they do regular updates on major cases that relate to copyright and fair use.
If you’d like detailed legal explanations, the lectures from class 9 of the CopyX class give an excellent historical and current overview of fair use (and how it got like this) with a lot of examples.
I’ll be digging into more specific examples (and some common confusions) in part 5.